We don’t have enough information yet to form a legal judgment about how bad the Tom Homan bribery allegation is. The story was apparently first reported by Carol Leonnig and Ken Dilanian at MSNBC, and has now been followed up by the New York Times and other outlets.
What’s reported sounds bad.
Homan was running a consulting business during the late phase of Biden’s term, but he was active in supporting Trump and it was widely believed — not least due to things Homan himself was saying — that he’d have a very consequential post in homeland security and immigration enforcement if Trump won. A suspect the FBI was investigating in Texas was overheard claiming that Homan was soliciting payments in exchange for border security business contracts to be awarded if Trump was elected president, according to “an internal Justice Department summary of the probe” that someone allowed the reporters to review.
Sometime afterwards, the FBI arranged an Abscam-style sting operation: An undercover agent posing as a potential contractor is said to have met with Homan and paid him $50,000 in cash, with the meeting covertly recorded on video.
The report says the investigation of Homan has been shut down by the Trump Justice Department. The following joint statement on the matter was provided to MSNBC by Deputy Attorney General Todd Blanche and FBI Director Kash Patel:
This matter originated under the previous administration and was subjected to a full review by FBI agents and Justice Department prosecutors. They found no credible evidence of any criminal wrongdoing. The Department’s resources must remain focused on real threats to the American people, not baseless investigations. As a result, the investigation has been closed.
This is carefully worded. The qualification of “credible” suggests that there was evidence of criminal wrongdoing but that the Trump investigators assessed it to be unconvincing. The fact that the matter originated under the Biden administration does not make it inherently untrustworthy — it was apparently a field investigation in Texas, not a case put together by political appointees in Washington, D.C.; and note: the Biden DOJ and FBI did not leak this pre- or post-election. Plus, the fact that the Biden people were running the DOJ would not change what’s on the video.
Moreover, even if evidence of criminal wrongdoing is lacking, Homan holds an influential post in the government. Plainly, there is more at issue here than whether a criminal case could be made against him. That’s why you can be certain that Democrats will be demanding that the video be produced to Congress, which will put the Trump-allied Republicans in a tight spot.
On the other hand, there could be significant legal problems with the case from a criminal-prosecution perspective.
Obviously, if Homan accepted $50,000 in cash, that would be very suspicious. People in legitimate consulting transactions typically write checks or transfer money in a similarly transparent manner because they know they’re not doing anything wrong. Nevertheless, it’s not a crime to accept cash (of course, it must be properly accounted for). Homan was not a government official at the time of the alleged payment. The MSNBC report indicates that the DOJ and FBI – prudently in my view – did not take immediate action because they wanted to see if Homan followed through by arranging contracts; had he done so, the investigators might have established solid quid pro quo evidence. But Homan was evidently kept out of such business in the transition and in his administration job, and, in any event, no such evidence emerged.
Meantime, MSNBC consulted Randall Eliason, a former DOJ public corruption prosecutor and now a law professor. He theorizes that Homan could not have been charged with bribery since he was now a public official at the time of the alleged payment, but he could have been charged with conspiracy to commit bribery, because conspiracy “is the agreement to commit a criminal act in the future.” But that omits a crucial principle of law: A person cannot conspire with an undercover government operative.
A conspiracy, as Eliason suggests, is the meeting of the minds to commit a criminal offense; you cannot have a meeting of the minds with a government agent because the agent does not actually intend to commit a crime — the agent is investigating potential crime. To have a conspiracy, there must be at least two people in the criminal agreement who were not undercover government agents. (To be clear, I am not faulting Eliason here. This is a rudimentary conspiracy-law tenet, so for all I know he may have explained it to MSNBC, only to have the reporters miss the significance of it, or otherwise decide not to include it in their story.)
We can’t evaluate the case against Holman until we know what was said in the recording, why he took the money (if he did), and why the transaction was in cash. Homan hasn’t been charged and he’s presumed innocent. But Congress should look into this, including whether it weighed into President Trump’s decision to give Homan an administration job that did not require a Senate confirmation process rather than nominate him for a cabinet post.